NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JAN 12 2026

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CARRINGTON MORTGAGE SERVICES, No. 24-6690 LLC, D.C. No. 2:17-cv-01311-RFB-BNW Plaintiff-Counter-Defendant - Appellant,

v. MEMORANDUM*

SILVERADO PLACE HOMEOWNERS’

ASSOCIATION,

Defendant,

SATICOY BAY LLC, SERIES 10384

MIDSEASON MIST,

Defendant-Counter-Claimant - Appellee.

Appeal from the United States District Court for the District of Nevada Richard F. Boulware, II, District Judge, Presiding

Argued and Submitted November 20, 2025 Phoenix, Arizona

Before: HAWKINS, HURWITZ, and COLLINS, Circuit Judges.

When a homeowners’ association (“HOA”) member defaults on dues, Nevada

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. law gives the HOA an extraordinary lien against the member’s property. Nev. Rev.

Stat. § 116.3116 et seq. The lien includes a superpriority component that

extinguishes all other encumbrances, including senior deeds of trust, upon

foreclosure. Id. § 116.3116(2)(b) (2012). However, a prior deedholder may preserve

its deed of trust by tendering the superpriority amount of the lien or by showing “that

the party entitled to payment had a known policy of rejecting such payments.” 7510

Perla Del Mar Ave Tr. v. Bank of Am., N.A., 458 P.3d 348, 349 (Nev. 2020).

In 2009, Anthony Spradlin financed the purchase of a residence in Las Vegas

with a loan secured by a first deed of trust, which was later assigned to Bank of

America, N.A. (“BofA”). After Spradlin failed to pay HOA dues, the Silverado Place

Homeowners’ Association retained the law firm of Leach Johnson Song & Gruchow

(“Leach Johnson”) to foreclose on its lien.

Seeking to preserve BofA’s deed of trust, its counsel, Miles Bauer Bergstrom

& Winters (“Miles Bauer”), wrote Leach Johnson offering to pay the superpriority

portion of the HOA lien. Miles Bauer’s letter stated that the superpriority portion

would be equal to “nine months of assessments for common expenses incurred

before the date of [the HOA’s] notice of delinquent assessment dated August 7,

2012,” and asked Leach Johnson to disclose what that amount was. Leach Johnson’s

response contended that the superpriority amount included not only past dues, but

also attorneys’ fees and costs, and did not come into existence until the first deed of

2 24-6690 trust was foreclosed. The Nevada Supreme Court later rejected these contentions.

SFR Invs. Pool 1 v. U.S. Bank, 334 P.3d 408, 412-14 (Nev. 2014) (explaining that

the superpriority portion of the HOA lien attaches prior to foreclosure), superseded

by statute on other grounds as stated in Saticoy Bay LLC Series 9050 W Warm

Springs 2079 v. Nev. Ass’n Servs., 444 P.3d 428, 430 (Nev. 2019); Horizons at Seven

Hills v. Ikon Holdings, 373 P.3d 66, 72 (Nev. 2016) (explaining that the superpriority

portion does not include attorneys’ fees and costs).

The HOA conducted a foreclosure sale and Saticoy Bay LLC, Series 10384

Midseason Mist purchased the property. The first deed of trust was later transferred

to Carrington Mortgage Services, LLC, which sued Saticoy to quiet title, alleging

that the deed survived the foreclosure. After a bench trial, the district court entered

judgment for Saticoy. We have jurisdiction over Carrington’s appeal under 28

U.S.C. § 1291. We review the district court’s findings of fact for clear error and its

legal conclusions de novo. See Oakland Bulk & Oversized Terminal, LLC v. City of

Oakland, 960 F.3d 603, 612 (9th Cir. 2020). We reverse.

1. Because BofA did not tender payment, the dispositive issue is whether

tender was excused. Perla, 458 P.3d at 351. Tender is excused if the HOA’s agent—

Leach Johnson—had a “known policy of rejecting such payments.” Id. at 349; see

also LN Mgmt. LLC Series 1936 Via Firenze v. PennyMac Holdings, LLC, No.

88108, 2025 WL 2384547, at *1 (Nev. Aug. 14, 2025) (affirming the district court’s

3 24-6690 holding that tender was excused because Leach Johnson “had a known policy of

rejecting such tenders”).

The district court found that Carrington failed to show “any attempt to tender

was subjected to automatic rejection” by Leach Johnson because the law firm

notified its HOA clients when it received a tender offer and asked them whether to

accept it. However, the record evidence shows that when Leach Johnson made these

notifications during the relevant time period, it “strongly recommend[ed]

foreclosure,” warning its clients that they “would be responsible to pay for any

collection fees and costs” if they accepted a tender offer limited to nine months’

worth of assessments, and that Leach Johnson’s clients invariably followed these

recommendations to proceed with foreclosure.

Miles Bauer also received hundreds of letters from Leach Johnson materially

identical to the one in this case. A tender rejection policy may be shown “by

conduct,” and “formal tender is not necessary where a party has shown that it would

not be accepted.” Perla, 458 P.3d at 351 (cleaned up). Leach Johnson’s rejection of

tender across hundreds of interactions with Miles Bauer shows that “even if Miles

Bauer had tendered a check for the superpriority amount, it would have been

rejected.” Id.; see also Via Firenze, 2025 WL 2384547, at *1. In reaching a contrary

conclusion, the district court relied on language in Leach Johnson’s letter stating that

if BofA made a “partial payment” to the HOA, the HOA “would apply it to the

4 24-6690 owner’s past due balance.” But the fact that Leach Johnson would accept only

“partial” payment confirms that Leach Johnson would not accept a tender

conditioned on agreement that “acceptance of the tender would satisfy the

superpriority portion of the lien.” Bank of America, N.A. v. SFR Invests. Pool 1, LLC,

427 P.3d 113, 118 (Nev. 2018) (holding that, in light of the clear language of the

statute, such a condition was proper despite the HOA’s disagreement); see also

Perla, 458 P.3d at 351 n.4 (holding that a known practice to refuse properly

conditioned tenders excuses failure to make such a tender)

2. Moreover, the Nevada Supreme Court has recognized that “tender is

excused where the lienor claims a larger sum than he or she is entitled to collect.”

Perla, 458 P.3d at 351-52 (cleaned up). Leach Johnson’s response letter to Miles

Bauer in this case erroneously asserted that the superpriority amount included

attorneys’ fees and costs. “If a demand for a larger sum is so made that it amounts

to an announcement that it is useless to tender a smaller sum, it dispenses with the

tender requirement.” Id. at 351 (cleaned up).

3. Viewing the trial record as a whole under the proper legal standards,

we hold that the district court clearly erred in finding that tender was not excused as

futile. We therefore reverse the judgment of the district court and remand with

instructions to enter judgment for Carrington.

5 24-6690 REVERSED and REMANDED.1

1 Carrington’s motion to supplement or correct the record, Dkt. 12, is denied.

6 24-6690